Dividing property when ending a marriage can be a real challenge for many couples. There may be some concern from both parties about what is marital versus separate property. While the ownership of certain assets may be pretty clear-cut, for other assets, it may not — such as the home in which you and your spouse lived during your marriage. If you bought the property before getting married, you may think it is separate property and yours to keep in divorce, but that may not be entirely true.
In South Dakota, equitable distribution laws determine asset division in divorce. It means that the court splits all shared property in a way that is fair for both parties. This doesn’t mean you should expect a 50/50 split.
What is marital property?
Marital property is any asset acquired by both spouses during a marriage — aside from a few things. Examples of marital property include:
- Real estate
- Retirement savings
Items deemed separate property are generally anything acquired before getting married, property protected by a prenuptial agreement, gifts and inherited assets. However, even these assets, if comingled with shared property, may become joint property.
What about the marital home?
When it comes to the marital home, if you bought it before marriage, yes, you will be able to keep it as part of your divorce settlement. However, the equity earned on the property during the marriage may be subject to distribution as it may be marital property. It all depends on whether you have a prenuptial agreement, whether shared funds paid for the home and how your spouse contributed to the property — among other things.
Get a fair property division settlement
Achieving a fair property division settlement in divorce can take time, negotiation and a lot of work. Most couples in South Dakota can reach terms they believe are fair without setting foot in a courtroom. However, some are not, and litigation proves necessary. In those cases, a judge will have the final say on the property division terms.
As far as your house is concerned, you may need to prepare yourself to pay your spouse a portion of the equity earned during your marriage. If that is something you find yourself unprepared to do, you may need to be willing to give up something else. With help, you can fight to keep the property you believe is yours and, ultimately, achieve an equitable division of assets.